BAYERO UNIVERSITY, KANO
FACULTY OF LAW
LECTURE NOTE ON
ADMINISTRATIVE LAW I
LAW 3315
Course facilitator; Dr Kabiru Adamu
The Smart Bukites…(Smart mindset)
Course Outline:
1.
Definition of the Concepts and Terms in Administrative Law
a.
Definition of Administration?
b.
Definition of Administrative Law?
c.
Functions of Administrative Law.
d.
Scopes, Essence, and Purposes of Administrative Law.
e.
Sources of Administrative Law.
2.
Distinctive Features of Administrative Law, and how it Differs from Constitutional Law, and Other Law Discipline.
3.
Administrative Law and Some Constitutional Concepts and Issues.
4.
5.
a.
The supremacy of the Constitution.
b.
Systems of Administration vis-a-vis Civilian and Military Systems.
c.
Separation of Powers under Nigerian System of Administration.
d.
Federalism and its Administrative Peculiarities in Nigeria.
e.
Fundamental Human Rights under the Nigerian Constitution.
f.
The Concept of Rule of Law and its Administrative Application and Practice in Nigeria.
Delegated Power and Legislation in Nigeria.
a.
The Origin and Evolutionary Process of Delegated Power.
b.
Meaning of Delegated Power and Legislation.
c.
The Practice of Delegated Power and Legislation.
d.
The Process and Mechanism of Controlling Delegated Power and Legislation.
Judicial Review and its System of Administration.
a.
The Meaning of Judicial Review.
b.
Judicial Review of Administrative Actions.
6.
The Twin-pillars of Natural Justice and the Review and Practice of Administrative Actions.
7.
Remedies against Administrative Actions and Practices.
a.
Types of Administrative Remedies and Prerogatives.
b.
Haveas Corpus.
c.
Certiorari.
d.
Prohibition.
e.
Mandamus.
f.
Injunction.
g.
Qui Warranto.
h.
Declaration.
8.
Administrative Commissions and Ombdusman.
9.
Types of Commissions in Nigeria.
a.
The Code of Conduct Bureau.
b.
Anti-corruption Commissions, e.g. EFCC, ICPC, etc.
c.
Public Complaints Commissions, e.g., Kano State Public Complaint and Anti-corruption Commission.
10. Quasi Judicial Bodies and Administrative Tribunal in Nigeria.
11. The Origin of the Tribunal System.
12. Classification of Tribunals.
a)
Military Tribunals.
b)
Rent Tribunals.
c)
Code of Conduct Tribunal.
d)
Special Tribunals, e.g., Election Petition Tribunals, Investments and Security Tribunals, Competition
Tribunals, etc.
e)
Arbitration Tribunals.
f)
Penal of Inquiries Tribunals.
g)
Professional Bodies Tribunals.
Reference Materials:
1)
Administrative Law by Ese Malemi.
2)
Outline of Administrative Law and Practice in Nigeria by Kabiru M. Danladi.
3)
The Practice of Administrative Law in Nigeria by Wilson Nwosu.
4)
Administrative Law in Nigeria by Adefin M. Olong.
5)
Nigerian Administrative Law by M.C. Okany.
6)
Understanding Administrative Law in Nigeria by Abdulhamid A. Ujo.
7)
Cases and Materials on Administrative Law in Nigeria by B.O. Iluyomide and Dr. B.U. Eka.
8)
Nigerian Administrative Law by P.A. Oluyode.
9)
Constitutional Law in Nigeria by A.W. Bradley.
10) Administrative Law of Nigeria by A.R. Tyagi.
MEANING OF ADMINISTRATIVE LAW
The Definition of Administration..
Abdulhamid A. defined 'administration' as, "the activities of a group operating to accomplish a
common goal."
This definition explains administration in the context of cooperation with a view to achieving a
particular aim or purpose. However, it fails to take cognizance of the fact that administration
goes beyond 'operation'. The definition is equally more or less theoretical because it does not
explain how administration is done.
In a similar vein, administration is seen by Ujo as the purpose of managing public affairs for
business activities or the day-to-day running of a limited liability company.
The Definition of Administrative Law...
Scholars and practitioners have defined 'administrative law' in the way they understand. There is,
however, no consensus or a single unified understanding, or a universal definition of
'administrative law'. The reason for this is as a result of the differences in background,
perspective, experience or bias of the person defining it. For instance, M.C. Okany, in his book,
'Nigerian Administrative Law' defines 'administrative law' as, “the law, relating to the
administration of the executive and which sets out the powers of the executive branch of
government, including various agencies through which powers are exercised.”
He continued by saying that...
“Administrative law is is that body of rules which aims at reducing areas of conflict
between administrative agencies of the state and the individuals.”
The above definition by Okany restricts the definition of Administrative Law to the executive
branch of government in the way they exercise their powers. The definition is equally restricted
to the way public bodies and institutions of government operate in their inter-relationship with
individual citizens. The definition is weak because it fails to explain how the powers of the
executives are exercised or the remedies that citizens have over state institutions when they
misuse or abuse their powers.
In another definition by Ujo, _“Administrative law could be described as those authoritative
rules which regulate the conduct of those who cooperate to achieve a purpose.”
The definition by Ujo above is tailored towards the explanation of administrative law as the law
that provides rules and regulations, and guidance on how people should conduct themselves
when they cooperate in the process of carrying out any task.
The definition by Ujo fails to consider that in the cause of cooperation, there is always the
possibility of abusing their powers; there is also the possibility of conflict arising from
cooperation. His definition also fails to explain administrative law in the context of how public
institutions operate in the society.
Wade and Philips define 'administrative law' as, “the law concerning the powers and procedures
of administrative agencies.”
Other definitions of 'administrative law' include:
Wade and Forsyth, in their book, 'Administrative Law', as, “the law that control government
powers and duties exercised by public bodies and authorities.”
Egwumo in his book, 'Modern Trends in Administrative Law', as, “the branch of public law
which aims at vindicating the rights of the citizens against certain attacks intentionally or
inadvertently emanating from government or its agencies.”
Olong, in his book, 'Administrative Law in Nigeria', as, “the law which deals with governmental
machinery in which policy is being implemented and it is basically concerned with all the
activities of the legislature, the executives and judiciary in any form of government.”
Some of the definitions above explains administrative law as that law that protects the citizens
from the excesses of government organs or institutions. The definitions also explain
administrative law in the context of how the three organs of government should operate and the
remedies that an individual citizen can claim when he is harmed by their citizens.
Finally, Kabir Danladi, in his book, 'Outline of Administrative Law and Practice in Nigeria',
explains administrative law as, “a law that regulates the general dealings and operations,
management of public and business affairs between the operator and the operatee, setting out
distinctively the extent and limitation of each of the parties involved.”
A community reading of all the definitions above shows how divergent authors and scholars are
on a single definition of a term.
The common threat that can be discerned or identified is that administrative law is the law that
provides the rules that shows how public bodies, organs or institutions should operate. It also
contains rules that deal with the powers conferred on government organs and how they are
expected to behave towards the citizens. It also explains how remedies can be obtained against
these organs.
THE ESSENCE AND PURPOSES OF ADMINISTRATIVE LAW
As highlighted previously, administrative law enables us to understand how the government
functions. It also splits out the powers of public authorities and how they should behave within
the confines of the law. This is because, if allowed unrestricted powers, public bodies may
misuse or act outside their powers with impunity.
Functions of Administrative Law
Administrative law performs very important and special functions in both a democratic and an
undemocratic society.
According to Wade Bradley: “One of the most important functions of administrative law is to
enable government tasks to be performed."
Creation of Agencies/Institutions: We all know that government is operated through agencies
and institution for the general benefit and welfare of the society, in that regard, it is
administrative law that creates those agencies to serve the people and equip them with the power
to carryout their activities.
Regulation of Relationship: Administrative law also performs a function of regulating the
relationship between public agencies and the citizens. It spells out the services these agencies are
to provide to the citizens and also prevents the abuse of powers by those agencies.
Resolution of Conflict: Administrative law also performs the function of resolving the conflict
between government agencies and the citizens, and how individual citizens can seek redress
against the government agencies.
Governance of Relationship: Administrative law performs the function of governing the
relationship between two or more public agencies. It spells out how they should behave.
Enforcement of Rule of Law: Administrative law also ensures the observance and enforcement
of rule of law in constitutional democracy. It prevents agencies from usurping absolute powers
that will endanger the rights of the citizens. It helps in setting out the powers, boundaries, and the
limits of administrative power. Administrative law ensures that public agencies report their
activities, mode of operation and performance of the parliament.
Provision of Avenue for Citizens to Compel Public Agencies to Perform Certain Task:
Administrative law provides the avenue through which the citizens can compel public bodies to
perform certain task as required under their enabling law. For instance, through the Freedom of
Information (FOI) report and Public Interest Litigations, administrative bodies are forced to
perform their constitutional rule or carryout their official functions as required by law.
SOURCES OF ADMINISTRATIVE LAW IN NIGERIA
In identifying the sources of administrative law, reference must be made to the Nigerian Legal
System and its explanation on the Sources of Law in Nigeria.
In that regards, the following are the sources of administrative law in Nigeria:
1) Received English Law.
2) The Constitution of the FRN.
3) Nigerian Legislations at the Federal and State Level.
4) Bye-laws.
5) Delegated and Subsidiary Legislations.
6) Administrative Memos, Policies and Circulars.
7) Written Textbooks by Jurists and Professionals.
8) Judicial Precedents and Pronouncements.
9) Law Reports.
10) Customary Law and Islamic Law.
Received English Law
The laws of England received into Nigeria during colonization are the first reference points for
the sources of administrative law.
This historical connection began in the year 1861 when Lagos colony was ceded to the British by
the then King, Dosumu.
It was reported that Dosumu handed over the Lagos colony to the British under a treaty called
Lago Cession, following threats from his rival Kosoko, the French invader, and the then British
commander, Bedingfield. Consequently, a law was passed that will allow the application of
English law to the then Lagos colony. That law was called Ordinance No 3 of 1863. This was
later followed by another ordinance called Ordinance No 11 of 1863, which mandated and
empowered English Courts, established in that colony, to apply English law. Therefore, the
ordinance contained what is called the 'reception clause' that received and allowed the
application of English laws in the colony of Lagos. It provides thereof that:
“All laws and statutes which were in force within the realm of England on the first day of
January, 1863, not being inconsistent with any ordinance in force in the colony, should
be deemed and taken to be in force in the colony.”
By virtue of the above provision, laws of England were received (imposed) in the Lagos colony
and, thereafter, through Nigeria. As to what constitute the Received English Law, guidance is
sought from the provisions of the Interpretation Act and the High Court Laws of most of the
States in Nigeria.
The Interpretation Act, Cap I 23 L.F.N., 2004, provides, under Section 32, that:
“Subject to the provision of this section, and except insofar as other provision is made by
any Federal law, the common law of England and the doctrines of Equity, together with
the Statute of General Application that were in force in England on the first day of
January 1900, shall, insofar as they relate to any matter within the legislative
competence of the Federal Legislature, be in force in Nigeria.”
The above provisions still maintains and approves the application and enforcement of the
received English law as an important source of law in Nigeria. Consequently, principles of
administrative law from Common law, Equity and Statutes of General Application are applicable
and enforceable in Nigeria.
Common Law and Equity
The common law of England developed from the customs of its people which metamorphosed
into law based on the pronouncements and decisions of English judges who manned the then
King's Bench, Court of Common Plea, and the Court of Exchequer. Their pronouncements on
administrative law matters and issues provide rich depository of knowledge on how public
authorities and institutions should operate. These courts imposed standards through their
pronouncements on lawful or unlawful conduct of public authorities. Their pronouncements also
shed light on the rule of law and the right and liberties of individual citizens and the remedies
they have against public institutions.
However, note that common law courts were very rigid and, therefore, litigants that appeared
before it had to show that the court has a remedy for them. Where such remedy is not available,
even where the litigants are harmed by the action of the public body, they will have to go emptyhanded. Consequently, the court of equity was established to assist litigants with remedies that
were not obtainable in common law courts. Those remedies were developed by the court of
equity to mitigate the inadequacies of the common law system. It was established after several
petitions were written to the then King of England who later instructed the Lord Chancellor to
come out with solutions on the basis of 'fairness' and 'justice'. The court of equity later developed
a number of principles which provide litigants with alternative remedies.
Note that a lot of the decisions and pronouncements of the court of equity relate to administrative
law practice. In particular, the mere fact that the court of equity was established was an act
covered by the administrative law because it challenged the then system of administering justice
under the common law, and an alternative was provided through the establishment of the court of
equity.
In addition, the principles and practices of the court of equity were mostly founded under the rule
of law and the right of the citizens over administrative bodies of justice. Therefore, the audience
and alternative remedy given to litigants by the court of equity relates to the principles of fair
hearing (which all administrative bodies and institutions including courts of law are expected to
have).
Furthermore, the doctrines of equity like rectification, rescission, specific performance, quantum
merut, and injunctions; enabled litigants to have reliefs, and formed a rich source of knowledge
for administrative law and practice.
Statutes of General Application
Statutes of General Application also provide rich sources of information for administrative law
and practice in Nigeria. The Nigerian Legal Systems inform us that Statutes of General
Application were legislations enacted by the English parliament and are applicable in Nigeria as
parts of our received English Law (section 32 of the Interpretation Act, and the various High
Court Laws of most of the States in Nigeria).
Therefore, those statutes and legislations which relate to administrative law and practice in
England as at 1st of January, 1900, form part of the sources of administrative law and practice in
Nigeria.
The Nigerian Constitution
The Nigerian Constitution is the most important organic source of Administrative Law and
practice in Nigeria. As we all know that every modern state usually has a constitution which is
the Supreme Law that governs the activities of government and the citizens, most constitutions
make elaborate and substantial provisions on the different organs of government, their powers
and the rights of the citizens. For instance, under the Nigerian Constitution, we have the tiers of
government, and organs of government (at both the National and State Levels).
We have three tiers of government (Federal, State, and Local). We equally have three organs of
government and their separate powers provided in section 4, 5 and 6 of the 1999 Constitution of
the Federal Republic of Nigeria. For instance, Section 4 of the Constitution (supra) establishes
and vests the legislative powers on the National Assembly (the Senate and House of
Representatives) and the State Assembly. On the other hand, Section 5 of the Constitution
(supra), thereof, establishes the office of the executive branch of government required to be
headed by the President (at the Federal Level), and the Governor (at the State Level). The
judicial arm is also established by Section 6 of the Constitution, and the section vests judicial
powers on the various courts of the land.
In addition, the Nigerian Constitution establishes some administrative bodies, agencies and
institutions to help government run her operations. For instance, Section 153 (1) of the 1999
Constitution of the Federal Republic of Nigeria establishes some federal institutions and
administrative bodies, which include: the Code of Conduct Bureau, the Council of State, the
Federal Character Commission (FCC), the Federal Civil Service Commission, the Independent
National Electoral Commission (INEC), the National Defence Council, the National Economic
Council, the National Judicial Council, the National Population Commission (NPC), the National
Security Council, the Nigeria Police Council, the Police Service Commission (PSC), and the
Revenue Mobilisation Allocation and Fiscal Commission (RMAFC). All these federal
institutions are set up to perform special administrative functions. There powers are stated under
the same Constitution, including the limits of their powers. These their powers are guided by
administrative law.
Moreover, the Nigerian Constitution makes substantial provisions on the supremacy of the rule
of law, and requires all public bodies to abide by this most important administrative law
principle. Where any of the agencies performs an act that violates these principles, or goes
beyond its administrative power (i.e., ultra vires), such act will be classified as unlawful.
Similarly, the Constitution makes substantial provisions on the rights of Nigerian citizens with
respect to their life, liberty, property, and their religion. Any violation of these provisions will
carry the appropriate sanctions under our administrative law. Chapter 4 (from Section 33 to
Section 46) of the 1999 Constitution of the Federal Republic of Nigeria makes provisions on the
Fundamental Human Rights of Nigerian citizens.
SIMILARITIES AND DISSIMILARITIES BETWEEN ADMINISTRATIVE LAW AND
CONSTITUTIONAL LAW
Administrative law and constitutional share similarities and dissimilarities, at times the dividing
line between the two is thin and confusing that notwithstanding the two shares the following
similarities, viz:
1. They are all branches of law and all share same source i.e. public law.
2. They are there to facilitate the easy functional of government of and its agencies.
3. The two system makes provision on how government organs and their administrative
agencies should operates under a democratic arrangement
However, the two rules share dissimilarities in the following ways, viz:
1. In the case of administrative law, it deals with the administration of government agencies,
while constitutional law deals with the complete body of laws operating in a country.
2. Constitutional law sums up the relationship between all the branches and organs of
government i.e. the executive, the legislature and the judiciary, whereas administrative law
focuses on the activities of the executive branch and its agencies and their relationship with
the citizens.
NIGERIAN SYSTEM OF ADMINISTRATIVE LAW AND ITS PECULIARITIES
It is to be noted that though Nigerian system of administrative law is heavenly influenced by
English, it has some unique peculiarities. Before independence, in 1960 administrative law
operates purely under the guidance of English law and a little of customary law. After
independence, the country saw a lot of constitutional changes which changed the way
administrative law is practiced in a country. In addition, social economic and political
development post 1999 brought about a lot of changes that impacted administrative law and
practice and made it unique and peculiar from that which operates in other countries.
Consequently, the following are some of the identifiable peculiarities of administrative law in
Nigeria, viz:
1. It is operated base on the common law system in perupassu with the customary law.
2. Administrative law system in Nigeria is also peculiar because it was shaped by a lot of
constitutional changes brought about by regionalism.
Note that the system of administrative law in the country pre-and post independence era, was
based on regionalism. There was the Northern region, the southern region consisting of the east
and the west. Each of which has its own Legislature, Houses of Chiefs and Heads of the
executives. There was also a federal legislature in Lagos and a parliamentary executive, this were
brought about by the constitution of 1946, the constitution of 1954 and the constitution of 1963.
It is to be noted that there was a military coup de tat when General Agui Ironsi became the Head
of State, he promulgated decree no.1 0f 1966 which brought a lot of changes in the Nigerian
polity, military officers became heads of the region. He also promulgated decree no34 of 1966
which created a unitary system of government.
THE PRINCIPLES OF DELEGATED LEGISLATION
What is delegated legis;ations?
According to MC Okanney, he defined delegated legislation as:
“The rules and regulations made by any person or body authorized to do so by an act of
the legislature.”
A Ujo defined delegated legislation as:
“A law made by the executive branch of government or other institution on the legal
authority of the legislative branch.”
Kabir Danladi defined delegated legislation as:
“A law made by anybody authority or agency empowered by statutes to do so.”
He explains further that: “Administrative making in action … law making by a public authority,
other than parliament is what is called delegated legislation.” He also said this act involved
“Delegation” and “Power” requires a delegate and a delegate is “a person who is appointed,
authorized or commissioned to act in-stead of another.”
Power means: - the ability to do, capacity of producing an effect, person to act, or the authority
to do any act which the guarantor himself might luckily perform.
The key elements in the above definitions and exceptions are that someone is delegated the
power to male laws, legislations, rules, regulations, bye-laws, policies etc. by the legislature.
WHY THE NEED FOR DELEGATED LEGISLATIONS?
1. To save cost and time: - the legislature us to delegate their power and functions in order
to save time and cost. This is because of the pressure on their parliamentary time and
responsibilities. They can be overwhelmed with work so much so that is practically
impossible to legislate on every matter that comes before them.
2. Technicality and Complexity: - Technicality and complexity of a giving matter to the
legislature may not be knowledgeable or fully conversant in an area that is technical.
They are therefore incapable of exercising legislative structure of that area.
Consequently, they delegate their power to legislate on that area to the
government institutions that has the technical expertise and knowledge to do so on its
behalf, for instance, matters requiring legislation in space engineering, artificial
intelligence, etc might not be known to the legislative members, in such cases the
legislative members enact a framework law and delegate the government agency concern
to make rules and regulations in that area.
3. Political Structure of a Country: - In some countries, the political structure is arranged
in such a way that power is either centralized or decentralized at the federal or subregional level. In such types of arrangement, the national legislature at the federal level
can delegate the power to make laws at the local or sub-regional level for the purpose of
expediency.
4. Executive powers: - Executive powers to take immediate action to address a dangerous
situation or an emergency event (war) require urgent extraordinary majors. There may be
emergency situations that require urgent action, executive or the use of discretion as such
delegated legislation is used as an instrument to quickly address the situation, this is
because violating the issues may take time and the delay may result in death, lost of
property or unimaginable consequences. Consequently, the power to regulate those
emergency issues is delegated to the executive or any of its agencies.
5. The need for flexibility: - by nature legislations enacted by the parliament takes time to
come into effect for being, there are formal and rigorous steps taken before laws are
made. These laws are rigid and difficult to be amended, therefore, where a law need
constant changes or amendment it takes the same rigorous process and as such where the
issues in the legislations are always changed by events, it means it has to be amended
regularly and in order to allow for flexibility the legislature can delegate the power to
change or amend such legislation to government agency and confer on it the right and
power to be changing those rules as the event warrant.
DISADVANTAGES OF DELEGATED LEGISLATION
1. The problem of abuse: - delegated legislation can be abused by the organ delegated
with such power, the organ can act ultra vires or make rules that favour its or against
the interest of its competitive. It can also make undemocratic rules and policies which
breach the fundamental human right of the citizen. It can also makes rules that favour
one class of the society against the other.
2. Subjectivity and Discretion: - A lot of the rules and regulations made under
delegated legislation are subjective. They also contain a lot of powers and the use of
discretion, especially where a minister or head of an agency is given such power.
3. Lack of control or supervision: - The legislature that donated a power under
delegated legislation might not be in full control over the agency or the organ it
delegated to such powers. Parliaments are naturally busy and therefore, do not have
the luxury of time to control or supervised every agency delegated with the power to
regulate an area.
4. Undemocratic: - The act and practice of delegated legislations, even though
necessary, it criticized for being undemocratic. This is because the narrow
interpretation of our democratic arrangement is that only the legislature and no one
has the power to make laws and legislations. It is therefore seen as an to another
agent or body other than elected legislators to make laws over a particular matter in
the society.
THE NATURE OF DELEGATED LEGISLATION
Delegated legislation is named by many nomenclatures and the name is determined by the organ
that makes rules under a delegated legislation. It is also call subsidiary legislation, it is also call
directives where a minister or head of a ministerial departments or publicly owned or managed
corporation is the one that make rules, it can also be call rules where it is made by judges,
tribunals or other quasi-judicial bodies. It can also be call a bye-law where it is made by local
government council or any of its departments.
It was also called order in council during colonial and post colonial, it can also be call a circular
where directives is given by a particular civil service department, it can also call a policy or
regulations. Other nomenclature used in describing delegated legislation includes wordings like
subordinative or secondary legislation.
Note that delegated legislation being subsidiary law derived their legitimacy to the main
legislations that empowers somebody to make rules, this main legislation is call the enabling law
(act, or statute) hence, they derived their validity from the enabling law, and where there is a
conflict between the subsidiary law and the enabling law, the later takes precedence. Note that by
nature, before delegated legislation becomes valid there must be the following element, viz:
1.
2.
3.
4.
5.
There must be a person or authority who delegated that power.
There must be a person or authority that is delegated with such powers.
There must be the power that is delegated or is to be delegated.
There must be proper and valid delegation of such powers and
There must be the act of delegation itself.
Consequently, with respect to the power to be delegated, such power must exist, if the person or
entity that delegated such powers but he does not have the power, such delegation is invalid.
Equally, where there must be a person or authority delegating such powers, hence, only the
legislature is recognised as the authority capable of delegating a power and no other person or
entity can do so. Where someone is purporting to delegate power on behalf of the legislature,
then such delegation is invalid.
Similarly, where the delegation is deemed wrongly or improperly, it cannot stand. This was
tested in the judicial authority in the case of AG BENDEL STATE V AG FRN (1981) 1 ALL
NLR P. 85 In this case, Bendel State institute an action against the FRN questioning the validity
of a bill that was passed by the join finance committee of the national assembly. The Supreme
Court held that any act which delegates the power of the national assembly, legislative function
id given to their committee is null and void because house committee has no power to pass law
and as such only the legislature can do so.
Note also that if the power is not delegated to any entity at all, then that entity cannot usurp and
claim delegation on behalf of the legislature or the authority that has the power to delegate. See
the case of AG KADUNA STSTE V HASSAN (1985) 2 NWLR PT 8. PG. 489
You should note that delegated legislation can be sub - categorized as follows, viz:
1. Contingency legislation: - this is the legislation made to apply base on the existence or
satisfaction of some conditions.
2. Supplementary legislation: - this are legislation or subsidiary rules which apply without
any precondition.
THE RULE AGAINST SUB – DELEGATION